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Prestige of Office Provisions

Wednesday, January 15th, 2014

Robert Wechsler

Some jurisdictions have an ethics provision entitled Prestige of
Office that, among other things, limits work that officials can do outside of government.
Here is the language that the Baltimore school district uses (this is
essentially the same as the city government's Prestige of Office provision, but with the addition of the phrase "public position," which turns it into a basic misuse of office provision):

An official may not intentionally use the prestige of office or
public position for the private gain of that official or the private
gain of another.

It's certainly a conflict of interest problem when prestige of office is used to make money through
public speaking or advertising ("The Pickup Your Mayor Prefers!").
But these situations can be handled by honararium
and endorsement provisions. When a Prestige of Office provision is applied
to related work done on the side, as it has been in the Baltimore school district, the issue
is moonlighting.

I don't think that ethics programs should regulate
moonlighting. I think this is a personnel matter. It is a resource
issue more than it is a conflict of interest issue. Permission be
sought from the superintendent or a designee. Perhaps, for aggregate
annual work over a certain number of hours or certain amount of
income, school board permission should be sought. In any event, it's
worth looking at how a Baltimore prestige of office matter was
handled.

According to a
recent article in the Baltimore Sun, in a 2012 matter, on the
basis of this provision, the Baltimore city schools ethics panel
determined that the school district's chief academic officer could
not receive money for training work done for a
company that did not do business with the school district. The
ethics board said that it was "reasonable to conclude that [the
advisee] has been invited to present at SUPES Academy — at least in
part — as a result of her position." Since the decision was not made
until after she had been paid, she was told to donate her earnings
to the school district.

The handling of this matter had some good and bad aspects to it.
Unsure if it was legal, the chief academic officer sought advice
from the school district's attorney. "The attorney said she was not
violating any policies, but they subsequently decided to ask for an
opinion from the ethics panel." It isn't clear from this description whether the attorney
favored asking the ethics panel for an opinion. If he favored doing
this, why would he have provided his own opinion? Perhaps he changed
his mind after thinking the matter through. In any event, it is good
and unusual for a government attorney to recommend the seeking of an ethics opinion elsewhere. This is what ethics panels are for. In fact, going by the
websites, the schools ethics panel provides more advisory opinions
than the city's ethics board.

However, the ethics panel took four months to provide an opinion.
This is too long. Fortunately, the panel appears to have realized this. An
expedited advisory opinion form on the panel's website is dated two
days earlier than the date on the advisory opinion. One advisory
opinion in January 2013 was made eight days after it was requested.
It's good to see that the ethics panel recognized the problem and
has done its best to solve it. It might even go further, and allow quick, informal ethics advice.

The other problem was what the official did with the money. The
opinion said that all funds, other than reasonable expenses, had to
be paid to the school district. But the official instead donated the
funds ($4,000) to teachers to pay for buses for field trips. Just
because an official earned the money doesn't mean she should be able
to determine how it is spent.

According to the article, the same thing happened with a county
school district matter, where the schools superintendent did work for the
same company. The superintendent said that he intended to donate the
funds toward a college scholarship for a county graduate.

If an ethics panel determines that money should be turned over to
the school district, the school board or its designee, not the official, should
determine how the money is spent.